Access more information visit:
http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases
For a curated summary relating to the NLRB Costco ruling visit:
http://storify.com/krishnade/costco-national-labor-relations-board-ruling-affec
http://bgn.bz/costco
2012 08 11 Report of the Acting General Counsel concerning social media cases
1. OFFICE OF THE GENERAL COUNSEL
Division of Operations-Management
MEMORANDUM OM 11-74 August 18, 2011
To: All Regional Directors, Officers-in-Charge,
and Resident Officers
From: Anne Purcell, Associate General Counsel
Subject: Report of the Acting General Counsel
Concerning Social Media Cases
Attached is a report of the Acting General Counsel
concerning social media cases within the last year.
/s/
A.P.
Attachment
cc: NLRBU
Release to the Public
MEMORANDUM OM 11-74
2. NATIONAL LABOR RELATIONS BOARD
OFFICE OF THE GENERAL COUNSEL
WASHINGTON, D.C. 20570
REPORT OF THE GENERAL COUNSEL
During my term as Acting General Counsel, I have endeavored
to keep the labor-management community fully aware of the
activities of my office. It is my hope that this openness will
encourage compliance with the Act and cooperation with Agency
personnel. As part of this goal, I continue the practice of
issuing periodic reports of cases raising significant legal or
policy issues.
This report presents recent case developments arising in
the context of today’s social media. Social media include
various online technology tools that enable people to
communicate easily via the internet to share information and
resources. These tools can encompass text, audio, video,
images, podcasts, and other multimedia communications. Recent
developments in the Office of the General Counsel have presented
emerging issues concerning the protected and/or concerted nature
of employees’ Facebook and Twitter postings, the coercive impact
of a union’s Facebook and YouTube postings, and the lawfulness
of employers’ social media policies and rules. This report
discusses these cases, as well as a recent case involving an
employer’s policy restricting employee contacts with the media.
All of these cases were decided upon a request for advice from a
Regional Director.
I hope that this report will be of assistance to
practitioners and human resource professionals.
___________/s/_____________
Lafe E. Solomon
Acting General Counsel
3. Employees’ Facebook Postings About Job Performance and
Staffing Were Protected Concerted Activity
In one case, we found that an Employer--a nonprofit social
services provider--unlawfully discharged five employees who had
posted comments on Facebook relating to allegations of poor job
performance previously expressed by one of their coworkers--a
domestic violence advocate. We concluded that the discharged
employees were engaged in protected concerted activity.
In or around July 2010, the advocate began complaining to
one particular coworker that clients did not want to seek
services from the Employer. Similarly, in August she had
conversations with other coworkers in which she criticized the
work done by the Employer’s employees. She also sent regular
text messages to the one particular coworker, criticizing other
employees’ work performance and complaining about workload
issues.
In early October, the advocate discussed several client and
workload issues with this one coworker, with the advocate
asserting, among other things, that the coworker had not
properly assisted a client. They exchanged multiple text
messages related to these issues. During the final exchange of
messages, the advocate said that the Employer’s Executive
Director would settle their differences.
The one coworker then talked to another employee about what
she considered to be a constant barrage of text messages from
the advocate criticizing the job performance of the Employer’s
employees. This employee suggested that she meet with the
Employer’s Executive Director.
To prepare for this meeting, the one coworker posted on
Facebook that the advocate felt that her coworkers did not help
the Employer’s clients enough. She then asked her coworkers how
they felt about it. The four coworkers who were later
discharged and the advocate responded to the Facebook posting.
That evening, the advocate reported the Facebook
conversation to the Employer’s Executive Director, indicating
that she considered her coworkers’ Facebook comments to be
“cyber-bullying” and harassing behavior.
On the next workday, the coworker tried to meet with the
Executive Director. The Executive Director said that she was
busy, but that she would call when she was available. A few
hours later, the coworker was called to the Executive Director’s
office and was terminated. That same day, the Employer
terminated the four other employees who had posted Facebook
responses to their coworker’s initial solicitation.
4. We first concluded that the discharged employees’ postings
on Facebook were concerted activity under the Meyers cases.
Meyers Industries (Meyers I), 268 NLRB 493 (1984), revd. sub nom
Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474
U.S. 948 (1985), on remand Meyers Industries (Meyers II), 281
NLRB 882 (1986), affd. sub nom Prill v. NLRB, 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). In these
cases, the Board explained that an activity is concerted when an
employee acts “with or on the authority of other employees, and
not solely by and on behalf of the employee himself.”
We decided that the Facebook discussion here was a textbook
example of concerted activity, even though it transpired on a
social network platform. The discussion was initiated by the
one coworker in an appeal to her coworkers for assistance.
Through Facebook, she surveyed her coworkers on the issue of job
performance to prepare for an anticipated meeting with the
Executive Director, planned at the suggestion of another
employee. The resulting conversation among coworkers about job
performance and staffing level issues was therefore concerted
activity.
We next found that the discharged employees were engaged in
protected activity. The Board has found employee statements
relating to employee staffing levels protected where it was
clear from the context of the statements that they implicated
working conditions. This finding of protected activity does not
change if employee statements were communicated via the
internet. See, e.g., Valley Hospital Medical Center, 351 NLRB
1250, 1252-54 (2007), enfd. sub nom. Nevada Service Employees
Union, Local 1107 v. NLRB, 358 F. App’x 783 (9th Cir. 2009).
Here, the coworker sought input from a fellow employee
about her dispute with the advocate after the advocate indicated
that they should have the Executive Director settle their
differences. The coworker had reason to believe that the
advocate’s action would result in a discussion with management
about employees’ responsibilities and performance and could
result in discipline. The comments of the other employees in
response to the coworker’s initial Facebook posting were
directly related to criticisms of job performance and
staffing/workload issues. Thus, because the Facebook postings
directly implicated terms and conditions of employment and were
initiated in preparation for a meeting with the Employer to
discuss matters related to these issues, we concluded that the
Facebook conversation was concerted activity for “mutual aid or
protection” under Section 7.
Finally, we held that the discharged employees did not lose
the Act’s protection. Although there was swearing and/or
sarcasm in a few of the Facebook posts, the conversation was
objectively quite innocuous. We also found that the postings
were not “opprobrious” under the Atlantic Steel Co. test, 245
5. NLRB 814, 816-817 (1979), typically applied to employees
disciplined for public outbursts against supervisors.
Internet and Blogging Standards and Discharge of Employee
for Facebook Posting Were Unlawful
In this case, we considered whether the Employer--an
ambulance service--maintained an unlawful internet and blogging
policy and whether it unlawfully terminated an employee who
posted negative remarks about her supervisor on her personal
Facebook page.
When asked by her supervisor to prepare an incident report
concerning a customer complaint about her work, the employee
asked for a union representative while she prepared the report.
She did not receive any union representation. Later that day
from her home computer, the employee posted a negative remark
about the supervisor on her personal Facebook page, which drew
supportive responses from her coworkers, and led to further
negative comments about the supervisor from the employee. The
employee was suspended and later terminated for her Facebook
postings and because such postings violated the Employer’s
internet policies.
The Employer’s employee handbook contained a blogging and
internet posting policy. It prohibited employees from making
disparaging remarks when discussing the company or supervisors,
and from depicting the company in any media, including but not
limited to the internet, without company permission.
We initially concluded that the incident report the
employee was asked to prepare constituted an investigatory
interview to which the employee had a Weingarten right to union
representation, and that the Employer unlawfully denied her that
right and threatened her with discipline for invoking that
right. We then turned to whether the Employer unlawfully
terminated her for engaging in protected activity and whether it
maintained unlawful internet and blogging policies.
We found that the General Counsel established a prima facie
case under Wright Line, and that the Employer did not meet its
rebuttal burden. The employee engaged in protected activity by
exercising her Weingarten right and by discussing supervisory
actions with coworkers in her Facebook post. It is well
established that the protest of supervisory actions is protected
conduct under Section 7. See Datwyler Rubber and Plastics,
Inc., 350 NLRB 669 (2007).
Applying Atlantic Steel, we concluded that the employee did
not lose the Act’s protections when she referred to her
supervisor by such terms as “scumbag.” As to the place of the
discussion, the Facebook postings did not interrupt the work of
any employee because they occurred outside the workplace and
6. during nonworking time. As to the subject matter of the
discussion, the comments were made during an online employee
discussion of supervisory action, which is protected activity.
Regarding the nature of the outburst, the name-calling was not
accompanied by verbal or physical threats, and the Board has
found more egregious name-calling protected. We found that the
last Atlantic Steel factor strongly favored a finding that the
conduct was protected; the employee’s Facebook postings were
provoked by the supervisor’s unlawful refusal to provide her
with a union representative and by his unlawful threat of
discipline.
We also considered the lawfulness of the Employer’s
blogging and internet posting policy. The first challenged
portion of the policy prohibited employees from posting pictures
of themselves in any media, including the internet, which depict
the company in any way, including a company uniform, corporate
logo, or an ambulance. We concluded that this language violated
Section 8(a)(1) because it would prohibit an employee from
engaging in protected activity; for example, an employee could
not post a picture of employees carrying a picket sign depicting
the company’s name, or wear a t-shirt portraying the company’s
logo in connection with a protest involving terms and conditions
of employment.
We also concluded that the portion of the policy
prohibiting employees from making disparaging comments when
discussing the company or the employee’s superiors, coworkers,
and/or competitors was unlawful. In University Medical Center,
335 NLRB 1318, 1320-1322 (2001), enf. denied in pertinent part
335 F.3d 1079 (D.C. Cir. 2003), the Board found that a similar
rule prohibiting “disrespectful conduct” towards others violated
Section 8(a)(1). Like the rule in University Medical Center,
the rule here contained no limiting language to inform employees
that it did not apply to Section 7 activity.
Also under challenge was the Employer’s standards-of-
conduct policy. This policy prohibited the use of language or
action that was inappropriate or of a general offensive nature,
and rude or discourteous behavior to a client or coworker. We
concluded that the prohibition here of “offensive conduct” and
“rude or discourteous behavior” proscribed a broad spectrum of
conduct and contained no limiting language to remove the rule’s
ambiguity in prohibiting Section 7 activity.
Employee’s Facebook Postings Were Part of Protected
Concerted Conduct Related to Concerns Over Commissions
In this case, we concluded that the Employer--a luxury
automobile dealership--violated Section 8(a)(1) when it
discharged an employee--a salesperson--for posting on his
Facebook page photographs and commentary that criticized a sales
event held by the Employer. We concluded that the employee’s
7. postings were part of a course of protected, concerted conduct
related to employees’ concerns over commissions and were not
disparaging of the Employer’s product or so “egregious” as to
lose the Act’s protection.
In early June 2010, the employee was at work when someone
in a vehicle at a dealership across the street, which was also
owned by the Employer, accidently drove into a pond in front of
the dealership. The employee joined his coworkers in watching
the commotion, and he took some photographs.
That same week, the Employer was hosting an all-day event
to introduce a new car model. Clients registered for this
event, and the corporate office provided professional drivers to
drive the cars with clients. Shortly before the event, around
June 6, the Employer’s General Sales Manager met with the
salespeople to discuss the event. He explained that the
Employer would serve hot dogs, cookies and snacks from a
warehouse club, and water. The salespeople remarked about the
choice in food, and at least one asked why the Employer was not
serving more substantial refreshments.
After the meeting, the salespeople discussed their
disappointment with the way the Employer was handling the event.
They were concerned that the inexpensive food and beverages
would send the wrong message to their clients and negatively
affect their sales and commissions.
During the sales event, the employee took photographs of
the food and beverages served, of his coworkers posing with the
food, and of a large promotional banner advertising the new car
model.
The following week, while at home, the employee posted on
his Facebook page the photographs of the vehicle in the pond and
of the sales event. In an introduction to the sales event
photographs, he remarked that he was happy to see that the
Employer had gone all out for the important car launch by
providing small bags of chips, inexpensive cookies from the
warehouse club, semi-fresh fruit, and a hot dog cart where
clients could get overcooked hot dogs and stale buns. The
photographs included one of a coworker holding a water bottle,
kneeling next to a cooler with ice and water bottles; several of
the cookie and snack table; one of a coworker near the hot dog
cart, and one of the promotional banner. The employee included
comments along with the photographs, reflecting his critical
opinion of the inexpensive food and beverages provided.
The following week, the Employer received a call from
another dealer who commented about the photographs of the car in
the pond. A part-time coworker, who was Facebook “friend” with
the employee, had also seen the posting and had mentioned it to
her supervisor. This prompted the Employer to look at the
employee’s Facebook page and to print out the photographs and
8. comments related to the pond incident and the sales event. The
Employer’s General Sales Manager called the employee at home and
told him to remove the photographs and comments from his
Facebook page; he immediately complied.
When the employee went to work on June 16, he was called
into a meeting with managers. The Employer tossed the printout
of the sales event photographs at him, asked him what he was
thinking, and said they were embarrassing to the dealership and
its founder and CEO. The Employer sent him home while it
considered a final decision regarding his employment. Shortly
after, the employee was terminated.
Several months later, the Employer claimed that the real
reason for the employee’s discharge was his posting of the
photographs of the car in the pond because he had made light of
a serious accident.
We concluded that the employee was engaged in concerted
activity, under the Meyers cases discussed above, when he posted
the comments and photographs regarding the sales event on his
Facebook page. As noted, before the event, several employees
were displeased with the planned food choices, and after the
meeting, the employees discussed this frustration among
themselves. At the event, the employee took photographs to
document the event and capture his coworker’s frustration. He
told his coworkers that he would put the photographs on
Facebook, and in doing so, expressed the sentiment of the group.
The Facebook activity was a direct outgrowth of the earlier
discussion among the salespeople that followed the meeting with
management.
Although the employee posted the photographs on Facebook
and wrote the comments himself, we concluded that this type of
activity was clearly concerted. We found that he was vocalizing
the sentiments of his coworkers and continuing the course of
concerted activity that began when the salespeople raised their
concerns at the staff meeting. Further, we concluded that this
concerted activity clearly was related to the employees’ terms
and conditions of employment. Since the employees worked
entirely on commission, they were concerned about the impact the
Employer’s choice of refreshments would have on sales, and
therefore, their commissions.
We found that the Employer knew of the concerted nature of
the employee’s conduct and that it could not meet its burden
under Wright Line of demonstrating that it would have discharged
the employee, even in the absence of the protected activity,
because of his postings regarding the incident with the car in
the pond.
We also concluded that the employee’s activity did not lose
the protection of the Act under either Atlantic Steel or under
NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346
9. U.S. 464 (1953). As noted above, Atlantic Steel is generally
applied to an employee who has made public outbursts against a
supervisor, while Jefferson Standard is usually applied where an
employee has made allegedly disparaging comments about an
employer or its product in the context of appeals to outside or
third parties.
Applying Atlantic Steel, we found that the employee’s
Facebook postings regarding the sales event were not so
opprobrious as to lose the Act’s protection. The activity
concerned a subject matter protected under Section 7. Further,
although the activity was not provoked by any unfair labor
practice committed by the Employer, the nature of the outburst
was much less offensive than other behavior found protected by
the Board. We found it unnecessary to rule on the place of the
discussion factor because, on balance, the conduct clearly
retained the Act’s protection.
Under Jefferson Standard, the inquiry is whether the
communication is related to an ongoing labor dispute and whether
it is not so disloyal, reckless, or maliciously untrue as to
lose the Act’s protection. Here, the employee’s postings were
neither disparaging of the Employer’s product nor disloyal. The
postings merely expressed frustration with the Employer’s choice
of food at the sales event. They did not refer to the quality
of the cars or the performance of the dealership and did not
criticize the Employer’s management. We found it irrelevant
that the postings did not clearly indicate that they were
related to a labor dispute given that they were neither
disparaging nor disloyal.
Employees’ Facebook Postings About Tax Withholding Practices
Were Protected Concerted Activity
We also considered a case in which the Employer-—a sports
bar and restaurant--discharged and threatened to sue two
employees who participated in a Facebook conversation initiated
by a former coworker about the Employer’s tax withholding
practices. This case also raised issues concerning the
Employer’s internet/blogging policy that prohibited
“inappropriate discussions.” We found that the discharges,
threats of legal action, and the internet policy were unlawful.
In early 2011, several of the Employer’s former and current
employees discovered that they owed state income taxes for 2010,
related to earnings at the Employer. After this discovery, at
least one employee brought the issue to the Employer’s attention
and requested that the matter be placed on the agenda for
discussion at an upcoming management meeting with employees.
Thereafter, on February 1, a former employee posted on her
Facebook page a statement, including a short-hand expletive,
that expressed dissatisfaction with the fact that she now owed
10. money. She also asserted that the Employer’s owners could not
even do paperwork correctly. One employee--Charging Party A--
responded to this posting by clicking “Like.” That same day, a
series of statements related to the initial posting followed.
Two other employees commented that they had never owed money
before, and one of them referred to telling the Employer that we
will discuss this at the meeting. Two of the Employer’s
customers joined in the conversation, as did Charging Party B,
who asserted that she also owed money and referred to one of the
Employer’s owners as “[s]uch an asshole.”
The Charging Parties were not working on the day of the
Facebook conversation. When Charging Party B reported back to
work on February 2, she was told that her employment was
terminated due to her Facebook posting and because she was not
“loyal enough” to work for the Employer anymore. The following
day, Charging Party A reported to work and was confronted by the
Employer about the Facebook conversation. He was terminated and
told that he would be hearing from the Employer’s attorney.
Thereafter, Charging Party B received a letter dated
February 5 from the Employer’s attorney stating that legal
action would be initiated against her unless she retracted her
“defamatory” statements regarding the Employer and its
principals published to the general public on Facebook.
As noted, under the Meyers cases, the Board’s test for
concerted activity is whether activity is “engaged in with or on
the authority of other employees, and not solely by and on
behalf of the employee himself.” Concerted activity also
includes “circumstances where individual employees seek to
initiate or to induce or to prepare for group action” and where
individual employees bring “truly group complaints” to
management’s attention. Meyers II, 281 NLRB at 887.
Here, the February 1 conversation on Facebook related to
employees’ shared concerns about a term and condition of
employment--the Employer’s administration of income tax
withholdings. Moreover, prior to the Facebook conversation,
this shared concern had been brought to the Employer’s attention
by at least one employee who specifically noted on Facebook that
she had requested it be discussed at an upcoming management
meeting with employees. Thus, the conversation that transpired
on Facebook not only embodied “truly group complaints” but also
contemplated future group activity.
We found that the Charging Parties’ statements did not lose
protection either under Atlantic Steel or, as the Employer
asserted, because they were defamatory.
Applying Atlantic Steel, we found that three of the four
factors weighed in favor of the Charging Parties’ retaining the
protection of the Act. As noted, the Charging
Parties’statements related to a core concern protected under
11. Section 7. Moreover, the comments were initiated outside of the
workplace during the Charging Parties’ nonworking time, and
neither disrupted operations nor undermined supervisory
authority. Furthermore, although the activity was not provoked
by any unfair labor practice committed by the Employer, the
nature of the Charging Parties’ postings was much less offensive
than other behavior found protected by the Board.
With regard to the Employer’s allegation of defamation, an
alleged defamatory statement will not lose its protected status
unless it is not only false but maliciously false. Here,
Charging Party A merely indicated that he “liked” the initial
Facebook posting by his former coworker, which accused the
Employer’s owners of not being able to do paperwork correctly.
Charging Party B’s posting was limited to a factually correct
statement that she had an outstanding tax obligation, and her
opinion that one of the Employer’s owners was “[s]uch an
asshole.” The Charging Parties’ Facebook postings, to the
extent that they constituted statements of fact that could be
alleged as defamatory, were not even false, much less
maliciously false under the Board’s standard.
We also concluded that the Employer’s threats to sue the
Charging Parties for engaging in protected concerted activity
violated Section 8(a)(1). It is well established that an
employer’s threat to sue employees for engaging in Section 7
activity violates the Act because it would reasonably tend to
interfere with the exercise of Section 7 rights. The Board has
historically distinguished the threat of a lawsuit from the
actual filing of a lawsuit and has rejected employers’ attempts
to extend the First Amendment protection accorded to lawsuits to
threats to sue where those threats, as here, were not incidental
to the actual filing of a suit. Thus, we found that the
Employer’s threats to sue the Charging Parties were unlawful,
even if there was a reasonable basis for potential legal action.
We also considered the lawfulness of the Employer’s
internet/blogging policy. This policy, included in the
Employer’s employee handbook, provided that the employer
supported the free exchange of information and camaraderie among
employees. The policy went on to state that when internet
blogging, chat room discussions, e-mail, text messages, or other
forms of communication extend to employees revealing
confidential and proprietary information about the employer, or
engaging in inappropriate discussions about the company,
management, and/or coworkers, the employee may be violating the
law and is subject to disciplinary action, up to and including
termination.
An employer violates Section 8(a)(1) of the Act through the
maintenance of a work rule if that rule would “reasonably tend
to chill employees in the exercise of their Section 7 rights.”
Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d
52 (D.C. Cir. 1999). The Board uses a two-step inquiry to
12. determine if a work rule would have such an effect. Lutheran
Heritage Village–Livonia, 343 NLRB 646, 647 (2004). First, a
rule is unlawful if it explicitly restricts Section 7
activities. If the rule does not explicitly restrict protected
activities, it is unlawful only upon a showing that: (1)
employees would reasonably construe the language to prohibit
Section 7 activity; (2) the rule was promulgated in response to
union activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights.
Applying these standards here, we concluded that the
provision of the Employer’s policy stating that employees are
subject to discipline for engaging in “inappropriate
discussions” about the company, management, and/or coworkers
could reasonably be interpreted to restrain Section 7 activity.
This policy utilized broad terms that would commonly apply to
protected criticism of the Employer’s labor policies, treatment
of employees, and terms and conditions of employment. Moreover,
the policy did not define what was encompassed by the broad term
“inappropriate discussions” by specific examples or limit it in
any way that would exclude Section 7 activity. Absent such
limitations or examples of what was covered, we concluded that
employees would reasonably interpret the rule to prohibit their
discussion of terms and conditions of employment among
themselves or with third parties.
Employee Who Posted Offensive Tweets Was Not Engaged in
Protected Concerted Activity
In another case, we considered whether the Employer--a
newspaper--violated Section 8(a)(1) when it discharged an
employee--a reporter--for posting unprofessional and
inappropriate tweets to a work-related Twitter account. We
concluded that the employee’s Twitter postings did not involve
protected concerted activity.
In the spring of 2009, after the Employer encouraged
employees to open Twitter accounts and to use social media to
get news stories out, the employee opened a Twitter account,
picked his screen name, and controlled the content of his
tweets. In the biography section of his account, he stated that
he was a reporter for the Employer’s newspaper, and he included
a link to the newspaper’s website.
In early 2010, the employee posted a tweet critical of the
paper’s copy editors. The tweet was in response to his concerns
about sports department headlines, but there is no evidence that
he had discussed his concerns with any of his coworkers.
About a week after that tweet, the Employer’s Human
Resources Director asked the employee why he felt the need to
post his concerns on Twitter instead of simply speaking to
people within the organization, and whether he thought it was
13. appropriate to post these types of tweets. The employee asked
if the newspaper had a social media policy. The Human Resources
Director replied that the policy was being worked on.
About a week later, the employee was told that he was
prohibited from airing his grievances or commenting about the
newspaper in any public forum. He replied that he understood.
He continued to tweet and to use other social media to post
about various matters, including matters relating to his public
safety beat. He did not make public comments about the
newspaper. Between August 27 and September 19, he posted
various tweets about homicides in the city, as well as several
with sexual content.
On September 21, the employee posted a tweet that
criticized an area television station. The next day, a web
producer for the television station took issue with the tweet
and emailed the paper about it. Thereafter, the employee
emailed the web producer and apologized.
During the afternoon of September 22, the employee was
called into a meeting with the Managing Editor, the City Editor,
and his team leader. The Managing Editor referred to the tweet
about the television station and then asked the employee why he
was tweeting about homicides. She told him that it was not okay
to make these types of tweets and that they would meet again
when the Executive Editor and Human Resources Director were
there. Until then, she said that he was not allowed to tweet
about anything work-related. The employee asked whether the
paper had a social media policy. She replied that it had not
yet been established and that it was almost complete.
Two days later, the employee was suspended for three days
without pay. When he returned to work, he was terminated. The
termination letter asserted that he had disregarded guidance to
refrain from using derogatory comments in any social media
forums that could damage the goodwill of the company and that
the Employer had no confidence that he could sustain its
expectation of professional courtesy and mutual respect.
We found that the employee’s discharge did not violate
Section 8(a)(1) because he was terminated for writing
inappropriate and offensive Twitter postings that did not
involve protected concerted activity. His conduct was not
protected and concerted: it did not relate to the terms and
conditions of his employment or seek to involve other employees
in issues related to employment. Ignoring his Employer’s
warning, he continued to post inappropriate tweets while
covering his beat. He was discharged for this misconduct, which
did not involve protected activity.
The employee alleged that he was disciplined pursuant to an
unlawful rule that prohibited certain Section 7 activities. We
14. concluded, however, that the Employer did not implement an
unlawful rule. Although some of the Employer’s statements could
be interpreted to prohibit activities protected by Section 7,
these statements did not constitute orally promulgated,
overbroad “rules”. They were made solely to the employee in the
context of discipline, and in response to specific inappropriate
conduct, and were not communicated to other employees or
proclaimed as new “rules.” In fact, the Employer indicated that
it had not yet developed a written social media rule.
Bartender Who Posted Facebook Message About Employer’s
Tipping Policy Was Not Engaged in Concerted Activity
This case concerned an employee--a bartender--who was
discharged for posting a message on his Facebook page that
referenced the Employer’s tipping policy, in response to a
question from a nonemployee. We found that the employee was not
engaged in concerted activity.
The Employer operates a restaurant and bar. It maintains
an unwritten policy that waitresses do not share their tips with
the bartenders even though the bartenders help the waitresses
serve food.
Sometime in the fall of 2010, the employee had a
conversation with a fellow bartender about this tipping policy.
He complained about the policy, and she agreed that it “sucked.”
However, neither they nor any other bartender ever raised the
issue with management.
In February 2011, the employee had a conversation on
Facebook with a relative. Responding to her query as to how his
night at work had gone, he complained that he hadn’t had a raise
in five years and that he was doing the waitresses’ work without
tips. He also called the Employer’s customers “rednecks” and
stated that he hoped they choked on glass as they drove home
drunk. He did not discuss his posting with any of his
coworkers, and none of them responded to it.
About a week later, the Employer’s night manager told the
employee that he was probably going to be fired over it. In
May, the employee received a Facebook message from the
Employer’s owner informing him that his services were no longer
required, and the next day, the Employer’s day manager left him
a voice message stating that he was fired for his Facebook
posting about the Employer’s customers.
As noted above, under the Meyers cases, the Board’s test
for concerted activity is whether activity is “engaged in with
or on the authority of other employees, and not solely by and on
behalf of the employee himself.” We found no evidence of
concerted activity here. Although the employee’s Facebook
posting addressed his terms and conditions of employment, he did
15. not discuss the posting with his coworkers, and none of them
responded to the posting. There had been no employee meetings
or any attempt to initiate group action concerning the tipping
policy or raises. We also found that this internet
“conversation” did not grow out of the employee’s conversation
with a fellow bartender months earlier about the tipping policy.
Employee Who Posted on Her Senator’s ‘Wall’ Was Not Engaged
in Concerted Activity
In another case, we considered whether the Employer
unlawfully discharged an employee who had posted messages on the
Facebook page of one of the U.S. Senators who represented her
state. We concluded that the discharge was not unlawful because
the employee was not engaged in concerted activity.
The Employer provides emergency and nonemergency medical
transportation and fire protection services to municipal,
residential, commercial, and industrial customers. The employee
worked as a dispatcher for the Employer, and her husband was an
EMT.
The Senator had announced on Facebook that four fire
departments in his state had received federal grants.
Responding to this announcement, the employee wrote comments on
the Senator’s Facebook “wall”. She stated, among other things,
that her Employer had contracts with several fire departments
for emergency medical services because it was the cheapest
service in town and paid employees $2 less than the national
average. She complained that the state was looking for more
cheap companies to farm jobs out to. She also referred to the
fact that the Employer had only two trucks for an entire county,
and she mentioned an incident in which a crew that responded to
a cardiac arrest call did not know how to perform CPR.
The employee did not discuss her Facebook comments with
other employees before or after posting them. She claimed that
she wanted to let the Senator know that she disagreed with how
emergency medical services were handled in her state and that
her kind of company was not helping the current situation. She
did not think that the Senator could help with her employment
situation. Although she had discussed wages with other
employees after the Employer had announced a wage cap, there is
no evidence that employees had met or organized any group action
to raise wage issues with the Employer.
Ten days after her Facebook comments, the Employer
terminated her for publicly posting disparaging remarks about
the Employer and confidential information about its response to
a service call. Her termination form also stated that her
comments violated the Employer’s code of ethics and business
conduct policy.
16. We concluded that the employee here did not engage in any
concerted activity under the Meyers test discussed above. As
noted, she did not discuss her posting with any other employee,
including her spouse. There had been no employee meetings or
any attempt to initiate group action. She was not trying to
take employee complaints to management and admittedly did not
expect the Senator to help her situation. Instead, she was
merely trying to make a public official aware of the condition
of emergency medical services in her state.
Employee Who Made Facebook Comments About Mentally Disabled
Clients Was Not Engaged in Concerted Activity
In this case, we considered whether the Employer--a
nonprofit facility for homeless people--violated the Act when it
discharged an employee for inappropriate Facebook posts that
referred to the Employer’s mentally disabled clients. We
concluded that the employee was not engaged in protected
concerted activity and therefore the discharge was not unlawful.
In May 2010, the Employer received a grant to develop a new
residential program for residents with significant mental health
issues. The employee, who had been a part-time residential
assistant, became a full-time recovery specialist in the new
program.
On January 27, 2011, the employee, while working on
the overnight shift, engaged in a “conversation” on her
Facebook wall with two Facebook “friends”. Among other
things, she stated that it was spooky being alone overnight
in a mental institution, that one client was cracking her
up, and that the employee did not know whether the client
was laughing at her, with her, or at the client’s own
voices.
The two “friends” who commented on the employee’s posts
were not coworkers. The employee was Facebook “friends”,
however, with one of the Employer’s former clients, who saw the
postings and called the Employer to report her concern. As a
result, when the employee reported for work on January 31, she
was terminated. The termination letter referenced the phone
call from the former client and quoted the employee’s January 27
Facebook posts. The letter stated that “[w]e are invested in
protecting people we serve from stigma” and it was not “recovery
oriented” to use the clients’ illnesses for the employee’s
personal amusement. The letter also cited confidentiality
concerns and noted that the employee’s posts were entered when
she should have been working.
We found that the employee did not engage in any protected
concerted activity under the Meyers cases discussed above. The
employee did not discuss her Facebook posts with any of her
fellow employees, and none of her coworkers responded to the
17. posts. Moreover, she was not seeking to induce or prepare for
group action, and her activity was not an outgrowth of the
employees’ collective concerns. In fact, her Facebook posts did
not even mention any terms or conditions of employment. The
employee was merely communicating with her personal friends
about what was happening on her shift.
Employee’s Facebook Postings About Manager Were Individual
Gripes, Not Concerted Activity
In another case, the Employer--a retail store operator--
disciplined a customer service employee for profane Facebook
comments that were critical of local store management. We found
insufficient evidence that the employee engaged in concerted
activity.
On October 28, after an interaction with a new Assistant
Manager, the employee posted a comment complaining about the
“tyranny” at the store and suggesting that the Employer would
get a wake up call because lots of employees are about to quit.
Several coworkers responded to his comment, expressing emotional
support, and asking why he was so wound up.
The employee responded to his coworkers’ postings by
asserting that the Assistant Manager was being a “super mega
puta” and complaining about being chewed out for mispriced or
misplaced merchandise. The employee asserted that two other
coworkers also made supportive comments. One of those coworkers
confirmed that she made a “hang in there” type of remark.
At least one coworker who viewed the employee’s Facebook
postings provided a printout to the Employer’s Store Manager.
On about November 4, the Store Manager told the employee that
his Facebook comments were slander and that he could be fired.
She imposed a one-day paid suspension that precluded promotion
opportunities for 12 months. She also prepared a discipline
report stating that the employee had put bad things on Facebook
about the Employer and Assistant Manager, that the employee’s
behavior was not within company guidelines, and that the
employee would be terminated if such behavior continued.
The employee subsequently deleted the Facebook postings.
We concluded that the employee’s Facebook postings were an
expression of an individual gripe, and were not concerted within
the Meyers cases discussed above. They contained no language
suggesting that the employee sought to initiate or induce
coworkers to engage in group action; rather they expressed only
his frustration regarding his individual dispute with the
Assistant Manager over mispriced or misplaced items. Moreover,
none of the coworkers’ Facebook responses indicated that they
had otherwise interpreted the employee’s postings. They merely
18. indicated that they had found the employee’s first posting
humorous, asked why the employee was so “wound up,” or offered
emotional support. We also found no evidence that established
that the employee’s postings were the logical outgrowth of prior
group activity.
Union Violated Section 8(b)(1)(A) by Posting
‘Interrogation’ Videotape on YouTube and Facebook
In this case, we found that a Union violated Section
8(b)(1)(A) when it interrogated employees at a nonunion jobsite
about their immigration status, videotaped that interrogation,
and posted an edited version of the videotape on YouTube and the
Local Union’s Facebook page.
A Union business agent and three Union organizers visited
the worksite of a nonunion subcontractor. The Union
representatives did not identify themselves or reveal their
Union affiliation. One carried a video recorder. After
climbing to the roof where employees were working, the chief
Union spokesman told the employees that they had to ask some
questions, that they were inspecting the job, and that they had
reports of illegal workers. He then asked three employees about
their country of origin, their immigration status, whether they
had “ID’s,” when and how they were hired, how they were paid,
how they paid their taxes, and whether they supplied social
security numbers or the Employer assigned them numbers.
At various times, the employees tried to resist answering
the questions and return to work, but the Union agents
instructed them not to. They asked the employees for
identification to verify their legal status. When the employees
said that they did not have identification, the Union agents
said that they would return in a half hour and that the
employees better have identification then. The Union agents
then climbed down to the ground level and asked similar
questions of some of the employees there.
The videotape of this incident runs approximately eighteen
minutes. The Union gave copies of the DVD to various federal
and state government officials. A Local Union member edited the
video down to approximately four minutes and interspersed
written editorial comments. He posted the edited version on
YouTube and on the Facebook page for his Local Union.
We initially concluded that the Union’s videotaped
“investigation” violated Section 8(b)(1)(A). The Board will
find a violation of Section 8(b)(1)(A) if a union’s conduct had
a reasonable tendency to restrain or coerce employees in the
exercise of their Section 7 rights. It implicitly has found
that there is a protected right to work for a nonunion employer.
In the Electrical Workers Local 98 cases, the Board ruled that a
union violated Section 8(b)(1)(A) by interfering with an
19. employee’s performance of his work duties for a nonunion
employer. See Electrical Workers Local 98 (Tri-M Group, LLC),
350 NLRB 1104, 1105-08 (2007), enfd. 317 F. App’x 269 (3d Cir.
2009); Electrical Workers Local 98 (MCF Services), 342 NLRB 740,
740, 752 (2004), enfd. 251 F. App’x 101 (3d Cir. 2007).
In addition, union threats to call immigration authorities
or to have employees deported constitute unlawful coercion.
Further, videotaping or photographing employees is unlawful
under Section 8(b)(1)(A) where accompanied by other conduct
indicating that the union would react adversely to employees’
exercising their Section 7 right to refrain from union activity.
In this case, we found that the Union’s own videotape
demonstrates that its agents engaged in coercive conduct within
the scope of Section 8(b)(1)(A). As described above, Union
agents entered the Employer’s jobsite in a threatening manner,
interfered with its employees’ performance of their work, and
coercively interrogated the employees in circumstances that
reasonably would have led them to believe that they were in
danger of being deported for immigration violations.
We also concluded that the Union’s posting of an edited
version of the videotape on YouTube and the Local’s Facebook
page was unlawful as well. Any employees who viewed these
postings, either through the YouTube link that expressly named
the Union or through the Local’s Facebook page, were subject to
the same coercive message conveyed to the workers at the
jobsite.
Provisions of Employer’s Social Media Policy Were Overly
Broad
In another case, we found that several provisions of an
Employer’s social media policy were overly broad as employees
could reasonably construe them to prohibit protected conduct.
The Employer--a hospital--issued a social media, blogging
and social networking policy, which was later incorporated into
the Employer’s employee handbook. Rule 4 of the policy
prohibited employees from using any social media that may
violate, compromise, or disregard the rights and reasonable
expectations as to privacy or confidentiality of any person or
entity. Rule 5 prohibited any communication or post that
constitutes embarrassment, harassment or defamation of the
hospital or of any hospital employee, officer, board member,
representative, or staff member. Rule 6 contained a similar
prohibition against statements that lack truthfulness or that
might damage the reputation or goodwill of the hospital, its
staff, or employees.
In this case, several nurses were unhappy with one of their
colleagues who was frequently absent, creating extra demands on
their time and workload. The Charging Party and others had
20. complained to their manager about this, but he had not done
anything to rectify the situation.
One weekend, the nurse who was frequently absent called in
sick. Several days later, the Charging Party posted a comment
on her own Facebook page complaining about her colleague’s
recent absence. The Charging Party referred to the colleague’s
pattern of calling in sick or absent and that she had disrupted
the work that weekend. The posting ended with asking anyone
with other details to contact her. One of the Charging Party’s
Facebook “friends” gave a copy of this posting to the Employer.
About a week later, the Charging Party was reprimanded for
her posting on Facebook, told that she had “talked badly about
the hospital” in violation of the Employer’s social media
policy, and was terminated.
We concluded that the provisions of the Employer’s social
media policy, as set out above, were overly broad as employees
could reasonably construe them to prohibit protected conduct.
We concluded that portions of the Employer’s social media
policy were unlawful under the second step of the Lutheran
Heritage test discussed above. We found that Rule 4 provided no
definition or guidance as to what the Employer considered to be
private or confidential. Yet, the Employer relied on the rule
to terminate the Charging Party for her Facebook complaints that
were clearly concerted and related to her working conditions
and, if she was a statutory employee, would be protected under
the Act. Thus, absent any limitations on what was covered, and
in light of the Employer’s application of the rule to protected
conduct, Rule 4 could reasonably be interpreted as prohibiting
protected employee discussion of wages and other terms and
conditions of employment, and was therefore overbroad.
We also found that Rules 5 and 6 were overbroad. These
included broad terms that would commonly apply to protected
criticism of the Employer’s labor policies or treatment of
employees. The policy did not define these broad terms or limit
them in any way that would exclude Section 7 activity. We
concluded that the Employer’s application and interpretation of
the broad language in Rule 5 to cover the Charging Party’s
expression of frustration over a colleague’s conduct that
frequently resulted in heavier demands on the staff would
reasonably lead employees to conclude that protected complaints
about their working conditions were prohibited.
Employee Handbook Rules on Social Media Policies Were
Overly Broad
Similarly, we found that another Employer’s handbook rules
pertaining to social media policies were overly broad.
21. The Employer’s online social networking policy, included in
the Employer’s employee handbook, prohibited employees on their
own time from using micro-blogging features to talk about
company business on their personal accounts; from posting
anything that they would not want their manager or supervisor to
see or that would put their job in jeopardy; from disclosing
inappropriate or sensitive information about the Employer; and
from posting any pictures or comments involving the company or
its employees that could be construed as inappropriate. It also
cautioned that one inappropriate picture or comment taken out of
context could fall into the wrong hands and cost an employee his
or her job.
We found that the prohibited conduct section of the policy
was unlawful under the second part of the Lutheran Heritage
test, described above, because its prohibitions would reasonably
be construed to prohibit Section 7 activity.
These prohibitions were broad terms that would commonly
apply to protected discussion about, or criticism of, the
Employer’s labor policies or treatment of employees. Neither
the handbook nor its online social networking policy section
provided any definition or guidance as to what communications
the Employer was referring to that would put employees’ jobs in
jeopardy, or that the Employer would consider inappropriate or
sensitive. Absent such limitations or examples of what was
covered, the rules would reasonably be interpreted as
prohibiting the employees’ right to discuss wages and other
terms and conditions of employment, as well as to communicate
through the posting of pictures.
The Employer’s policy prohibited employees from using the
company name, address, or other information on their personal
profiles. We found that this prohibition was unlawful. The
Employer offered no explanation as to why employees could not
identify the Employer on their personal profiles, but even
assuming that it had a legitimate interest in preventing
disclosure of certain protected company information to outside
parties, the ban was not narrowly drawn to address those
concerns. Here, moreover, the function that the “personal
profile page” serves in letting employees use the social network
to find and communicate with their coworkers made this
prohibition particularly harmful to their Section 7 rights.
Policy’s Bar on Pressuring Coworkers to Use Social Media
Was Lawful, But Other Prohibitions Were Too Broad
In another case, we looked at three policy guidelines in an
Employer’s social media policy. We found one guideline lawful,
where it was narrowly drawn to restrict harassing conduct and
could not reasonably be construed to interfere with protected
activity. However, we found that two other provisions of the
policy were unlawfully broad.
22. The Employer operates a supermarket chain. It implemented
a new social media and electronic communication policy, which
stated that it was designed to protect the Employer’s reputation
and that it governed employee communications during both work
and personal time. Guideline 3 of the policy precluded
employees from pressuring their coworkers to connect or
communicate with them via social media. Guideline 5 precluded
employees from revealing, including through the use of
photographs, personal information regarding coworkers, company
clients, partners, or customers without their consent.
Guideline 6 precluded the use of the Employer’s logos and
photographs of the Employer’s store, brand, or product, without
written authorization.
Applying Lafayette Park Hotel and Lutheran Heritage, as
discussed above, we concluded that the Employer’s admonition in
guideline 3 that no employee should ever be pressured to
“friend” or otherwise connect with a coworker via social media
could not be reasonably read to restrict Section 7 activity.
The rule was sufficiently specific in its prohibition against
pressuring coworkers and clearly applied only to harassing
conduct. It could not reasonably be interpreted to apply more
broadly to restrict employees from attempting to “friend” or
otherwise contact colleagues for the purposes of engaging in
protected concerted or union activity.
We found, however, that guideline 5’s restriction upon
revealing personal information was unduly broad and could
reasonably be interpreted as restraining Section 7 activity.
Employees have a Section 7 right to discuss their wages and
other terms and conditions of employment. A rule precluding
employees from discussing terms and conditions of employment, or
sharing information about themselves or their fellow employees
with each other or with nonemployees violates Section 8(a)(1).
Absent any limitations or examples of what is covered, we
concluded that the guideline would reasonably be interpreted as
prohibiting employees’ right to discuss wages and other terms
and conditions of employment.
Similarly, we decided that the prohibition in guideline 6
on using the Employer’s logos or photographs of the Employer’s
stores would restrain an employee from engaging in protected
activity. For example, an employee could not post pictures of
employees carrying a picket sign depicting the Employer’s name,
peacefully handbill in front of a store, or wear a t-shirt
portraying the Employer’s logo in connection with a protest
involving terms and conditions of employment.
23. Employer’s Rule Restricting Employee Contacts with Media
Was Lawful
Another case presented a challenge to an Employer’s policy
restricting employees’ contacts with the media. Applying the
Lutheran Heritage standard, discussed above, we concluded that
the policy could not reasonably be interpreted to prohibit
employees from speaking on their own behalf with reporters and
therefore did not violate the Act.
The Employer--a grocery store chain--included a media
relations and press interviews policy in its employee handbook.
Under this policy, the public affairs office was responsible for
all official external communications; employees were expected to
maintain confidentiality about sensitive information; and it was
imperative that one person should speak for the Employer to
deliver an appropriate message and avoid giving misinformation.
The policy also prohibited employees from using cameras in
the store or parking lot without prior approval from the
corporate office. In addition, employees were directed to
respond to all media questions by replying that they were not
authorized to comment for the Employer or did not have the
information being sought, to take the name and number of the
media organization, and to call the public affairs office.
It is well established that employees have a Section 7
right to speak to reporters about wages and other terms and
conditions of employment. See Kinder-Care Learning Centers, 299
NLRB 1171, 1172 (1990). Therefore, while an employer has a
legitimate business interest in limiting who can make official
statements for the company, its rules cannot be so broadly
worded that employees would reasonably think that they were
prohibited from exercising their Section 7 right to speak with
reporters about working conditions.
However, a media policy that simply seeks to ensure a
consistent, controlled company message and limits employee
contact with the media only to the extent necessary to effect
that result cannot be reasonably interpreted to restrict Section
7 communications. In AT&T Broadband & Internet Services, Case
12-CA-21220 at 10, Advice Memorandum dated November 6, 2001, we
determined that a policy that stated that “the company will
respond to the news media in a timely and professional manner
only through the designated spokespersons” could not be read as
“a blanket prohibition” against all employee contact with the
media. Additional language in the rule referring to “crisis
situations” and ensuring “timely and professional” response to
media inquiries further clarified that the rule was not meant to
apply to Section 7 activities.
Similarly, we concluded here that the Employer’s media
policy repeatedly stated that the purpose of the policy was to
ensure that only one person spoke for the company. Although
24. employees were instructed to answer all media/reporter questions
in a particular way, the required responses did not convey the
impression that employees could not speak out on their terms and
conditions of employment.
We also concluded that the Employer’s rule against allowing
cameras in the store was not unlawfully overbroad. The
prohibition of cameras followed and preceded instructions about
how to deal with news media and events drawing outside
attention. The only reasonable interpretation of this rule was
that the cameras referred to are news cameras, not employees’
own personal cameras, and therefore this part of the media
policy would not chill employees’ Section 7 conduct.